Baker Marine Corporation

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 680 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Baker Marine Corporation and United Steelworkers
of America, AFL-CIO. Case 23-CA-7649
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 24, 1981, Administrative Law Judge
Richard J. Boyce issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,1 and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
t The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect Standard Dry
Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings.
In describing the meeting held by Narvaez, the Union's subdistrict di-
rector, with employees Quiroz, Cantu, and Gutierrez on June 19, 1980,
the Administrative Law Judge failed to note that employee Gonzalez
also attended this meeting and explained the commitment Respondent al-
legedly had made to have two additional spider baskets. In describing the
meeting of union and management officials held on June 20 to discuss the
matter of escape routes, the Administrative Law Judge incorrectly stated
that Safety Director Allen said there never had been a heart attack in a
crow's nest. These errors are insufficient to affect our decision.
2 In light of our agreement with the Administrative Law Judge's con-
clusion that Respondent did not violate Sec. 8(a)(5) and (1) of the Act by
failing to install extra spider baskets by June 19, 1980, we find it unneces-
sary to pass on his further conclusions that even if Respondent had been
in derogation of an agreement to install extra spider baskets, this would
not have amounted to a repudiation or material impairment of the under-
lying collective-bargaining agreement excusing noncompliance with the
no-strike clause.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This
matter was heard before me in Corpus Christi, Texas, on
April 15-18 and June 2-4, 1980. The charge was filed on
258 NLRB No. 91
August 27, 1979, and amended on October 1, by United
Steelworkers of America, AFL-CIO, herein called the
Union. The complaint issued on October 5, 1979, was
amended on both March 28, 1980, and during the hear-
ing, and alleges that Baker Marine Corporation herein
called Respondent, committed certain violations of Sec-
tion 8(a)(1) and (5) of the National Labor Relations Act.
I. JURISDICTION
Respondent is a Texas corporation engaged in Ingle-
side, Texas, in the construction of offshore oil-drilling
rigs. It annually causes materials of a value exceeding
$50,000 to be shipped into Texas from outside the State,
and concededly is an employer engaged in and affecting
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. LABOR ORGANIZATION
The Union and its affiliated local, Local No. 8237, rep-
resent Respondent's 600 or so production and mainte-
nance employees. It is undisputed that these entities are
labor organizations within Section 2(5) of the Act.
Ill. ISSUES
The General Counsel contends that Respondent violat-
ed Section 8(a)(1) on June 14, 1979, by suspending 12
employees for refusing to work on legs being assembled
for a drilling rig; on June 19, by discharging 11 employ-
ees for again refusing to work on the legs, and by sus-
pending approximately 250 other employees who en-
gaged in a sympathy walkout that day; on June 20, by
informing the Union that those engaging in the sympathy
walkout would be without jobs if they failed to return to
work on June 21; on June 21, by discharging 20 employ-
ees who returned to work but refused to work on the
legs; and, on and after June 22, by discharging nine em-
ployees for failing to return on June 21.
The General Counsel also contends that Respondent
violated Section 8(a)(5) and (1) on and after June 19 by
reneging on an agreement allegedly reached with the
Union on June 18 to improve means of escape from
work places on the legs by installing additional "spider
baskets."
Concerning the alleged independent violations of Sec-
tion 8(a)(l), Respondent argues that the employees were
in contravention of a no-strike clause in each instance
that work was withheld, that their conduct consequently
was unprotected, and that the actions taken by it there-
fore were privileged. Respondent and the Union were
party at the time to a collective-bargaining agreement
containing this provision.
ARTICLE 5. Strikes and Lockouts
During the term of this Agreement, there shall be
no lockout by Company nor any strike, slowdown
or other interference with Company's work by
Union or any employee.
The General Counsel counters that the work on the
legs was, or was perceived by the employees to be, of an
"abnormally dangerous" character within Section 502 of
680
BAKER MARINE CORPORATION
the Act; and, as concerns the sympathy walkout and
other refusals to work on and after June 19, that Re-
spondent had rendered the no-strike clause inoperative
by dishonoring the alleged June 18 agreement to install
additional spider baskets. Section 502 states that "the
quitting of labor . .. in good faith because of abnormal-
ly dangerous conditions for work . . . [shall not] be
deemed a strike under this Act."'
With regard to the alleged violation of Section 8(a)(5)
and (1), Respondent asserts that it never agreed to install
additional baskets.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Evidence
As earlier indicated, this case concerns the refusal of
certain of Respondent's employees, on and after June 14,
1979, to work on legs being assembled for a drilling rig,
the attendant sympathy walkout on June 19 by many of
Respondent's other employees, plantwide, and Respond-
ent's responses to those employee actions.
Each rig has three legs. The legs are fashioned from
tubular sections of steel, each section being 10 feet in di-
ameter, generally 30 to 45 feet in length, and having a
wall thickness of between one-half and 2-1/2 inches. The
legs are assembled by welding section to section, their
eventual length sometime exceeding 400 feet. During as-
sembly, the platform they one day will support is at the
base of the legs, with the legs protruding skyward and
taking on the aspect of increasingly tall towers as their
assembly progresses. The sections are lifted into place by
crane. Preparatory to a rig's going into use, the platform
is jacked up the legs to the desired height.
A leg is encircled by a "crow's nest" at the level
where work is being done. A crow's nest consists of a
circular steel platform 4 feet wide, on which the employ-
ees stand while welding and doing related tasks, and a
partially enclosing plastic canopy. The canopy serves as
a wind break and otherwise stabilizes the environment
around the seam, ensuring a proper weld.
Six to eight people usually work in a crow's nest at a
given time. Their primary means of transport between it
and the ground is by spider basket, a pneumatically
powered conveyance guided by two vertical cables. At
In their briefs, the General Counsel and the Union for the first time
advance the additional theory that the refusals to work on the legs were
protected exercises of a right given by art. 16(a) of the labor agreement,
which states in relevant part: "An employee objecting to particular work
on the grounds that it will seriously endanger his physical safety shall not
be required to perform such work until it has been considered and ap-
proved by the Safety Director, the General Foreman or the Vice Presi-
dent, Production. The employee shall have the right to be present, if he
chooses, when the particular work to which he has objected is examined
by the Safety Director, the General Foreman or the Vice President, Pro-
duction."
This theory is rejected for two reasons. First, the withholding of its
espousal until the briefs unfairly prevented Respondent from meeting it
with either evidence or argument. Second, as is more fully developed
later, the stoppages in question plainly were in the nature of strike activi-
ties, intended to continue until Respondent effected certain changes, and
not temporary abstentions from given tasks to invite management's exam-
ination of possibly dangerous conditions, as seems to be contemplated by
the above language from art. 16(a). To regard the present stoppages as
protected by this language would be to make a mockery of what obvi-
ously was intended to be an almost all-encompassing no-strike clause
the times in question, each leg had one spider basket,
each basket carrying one or two people, up to a total
weight of 500 pounds. A one-way trip in a spider basket
takes 10 or more minutes, depending on the elevation of
the crow's nest. The delivery of an entire crew, then, re-
quires several shuttles of a spider basket and a consider-
able passage of time.
A crane also is used at times to get employees to and
from the crow's nests. The "personnel carrier" of a crane
can accommodate seven or eight at a time, but is consid-
ered less safe than a spider basket. So far as the record
shows, none of Respondent's employees ever has in-
curred injury needing medical attention while in a spider
basket. One employee has fallen to his death from a
crane's personnel carrier.2
The events in question seemingly were set in motion
on June 13, 1979, by the occurrence of a fire in a crow's
nest and the on-the-job death of one employee, Guada-
lupe Moya. The fire developed when the flame from a
cutting torch ignited a hose used in welding. A substan-
tial amount of flame and smoke resulted, blocking access
to the spider basket. Those of the seven or eight crew
members not fighting the fire took refuge on that part of
the platform around the leg from the fire. The fire was
put out in 2 or 3 minutes by use of a fire extinguisher in
the crow's nest.3 No one was injured.
Moya's death happened on the ground, in an unrelated
incident, when the earth beneath a sandhopper gave
way, causing it to tip over and crush him.
The next day, June 14, 14 employees assigned to work
on the legs refused. Primarily responsible for the refusal
was Rene Gonzalez, a welding leadman. Reflecting the
night before on Moya's death, he had decided that he no
longer would work on the legs-"there's a lot of jobs
and I have only got one life and I feel it is unsafe."4 So,
before work on June 14, Gonzalez voiced these senti-
ments to the three on his crew, reputedly elaborating
that, with the fires they had "been through," they
needed "some escape route to come down all in one
bunch" should there be an emergency. Gonzalez ex-
pressed similar feelings to John Warren, welding fore-
man, and to Roland Stewart, welding superintendent,
adding to Warren: "[I]n an emergency . . . we are going
to fight for our lives to be the first one to get in that
[spider] basket, and we need something better to bring us
down."
Warren and Stewart responded that the employees
were fired and should get their things and leave if they
would not work on the legs, and directed that they see
the personnel manager, George Wesch. With that, 2 of
the 14 returned to work. The remaining 12 went to the
2 This occurred on July 1I 1979-several days after the events in ques-
tion. Charles Allen. Respondent's safety director, testified that the spider
basket is safer than the crane because it travels in a vertical line and is
controlled by the occupants. thus leaving less room "for human error "
' Each crow's nest is equipped with two fire extinguishers In this in-
stance, one of the extinguishers failed to work. The weight of evidence
suggests a certain lack of care in keeping the extinguishers in orking
order.
* Gonzalez admittedly was not influenced in this decision by the June
13 fire- "I never did pay any attention to it because I already had in my
mind" decided not to work on the legs
681
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
personnel office, where Wesch told them they were sus-
pended for 5 days pending discharge, and that they
should return on June 18 if they desired "protest hear-
ings."5 Wesch recalled that some of the employees told
him at this time that they wanted more spider baskets;
others, that they were "scared of"' the baskets and
wanted the crane; one that he feared working on the legs
because of the height; and one, that the employees
wanted "a quicker exit, a fire exit, to get down."
Wesch testified that he asked the employees if they
"would be willing to work up there" if there were three
spider baskets per leg and crew size were limited to six,
permitting the concurrent evacuation of all; and that the
response was noncommittal. As Wesch put it, he did not
mean by this question to be making an offer or a prom-
ise; rather, that he "just wanted to know whether that
would solve the problem."
Wesch testified, as well, that he called Jesse Cantu, an
employee doubling as the union local's safety representa-
tive, to his office on June 14; that Cantu said it looked
like the employees were "scared of the baskets with
what happened yesterday"; and that Wesch, assuming
this to have been an allusion to Moya's death and pro-
fessedly unaware of the fire, replied that that "had noth-
ing to do with the legs." Wesch's testimony continued
that, while both he and Cantu voiced puzzlement as to
the employees' reasons for refusing to work, Cantu sug-
gested that they wanted a crane in place of the spider
baskets, prompting Wesch to say that it would be "im-
possible" to have the crane on hand at all times, but that
it would be available when not otherwise engaged, as
always had been the case; and that the spider baskets had
been checked by and received the approval of the Occu-
pational Safety and Health Administration (OSHA).
Cantu by implication denied that this conversation
took place, testifying that he did not learn of the refusals
to work until June 18, and that he then had a conversa-
tion of somewhat similar purport with Wesch. Cantu to
the contrary, it must be concluded that he knew, on June
14, of the refusals. Manuel Narvaez, a subdistrict director
for the Union, testified that he telephoned Cantu on June
14, upon learning of Moya's death, and that Cantu then
told him of that day's terminations for refusing to work
on the legs. Cantu explained, according to Narvaez, that
the employees were insisting on improved means of
escape in case of fire, citing the fire of June 13.
The morning of June 18, 9 of the 12 suspended em-
ployees went in a group to Wesch's office, after which
Wesch presided over a general protest hearing, abandon-
ing the earlier plan to have individual hearings. During
the meeting, according to Wesch, he told the employees
that they were wanted "back to work," but that "there
will be no change" in working conditions on the legs.
The employees' response, Wesch continued, was, "Fine,
we're ready to go back to work." Wesch testified that,
5 Art. 15(b) of the labor agreement states that an employee "shall not
be peremptorily discharged. but may be immediately suspended for the
purpose of discharge. He shall be allowed five (5) calendar days . in
which to file a request for a protest hearing with the Personnel Depart-
ment." The 12 suspended were: Keith Barrett, Rafael Dorado. Ricardo
Everett, Robert Garcia, Rene Gonzalez, Ambrocio Mendoza, Noe Najar.
Leo Obregon, Robert Ramos. Abelardo Solis, Jose Vera, and Carlos
Ymbert.
while he demonstrated a new, fireproof fabric under con-
sideration as a replacement for the plastic in the cano-
pies, and that the need for good housekeeping in the
crow's nest was discussed, there was "no discussion at
all" of improving ways to get down from the crow's
nests or of the employees' fear of fires. Wesch denied
any conversation with Cantu on June 18 or that Cantu
attended this meeting.
Cantu testified, on the other hand, that Wesch called
him to the office on June 18, and that the two of them
had a private conversation before addressing the employ-
ees generally. In that conversation, according to Cantu,
he told Wesch that the employees were upset over
Moya's death, and refused to work on the legs without
improved means of evacuation; and Wesch responded
that Moya's death had nothing to do with the escape
facilities on the legs, that the existing spider basket ar-
rangement had been inspected and approved by OSHA,
and that it would be "impractical" to make the crane
available "all the time" as an evacuation vehicle. Cantu
concededly did not quarrel with any of these assertions.
At length, Cantu went on, Wesch asked if the employ-
ees would be "willing to work with" two additional bas-
kets per leg, enabling the simultaneous evacuation of six
people, with the crane on standby when not otherwise
engaged. Cantu assertedly replied that he would have to
ask the employees, after which he did just that, with
Wesch present, and they indicated their assent. Cantu ini-
tially testified that Wesch then told the employees they
either could return to work that day, working on the
ground, or could return the next day to work on the
legs, which by then would have the extra baskets. Cantu
later testified, however, that Wesch never said the extra
baskets would be in place the next day.
That Cantu was present on June 18 was corroborated
by Gonzalez, Abelardo Solis, and Carlos Ymbert. 6 Gon-
zalez testified at one point that Wesch told the employ-
ees that Respondent would install "two more baskets,
spider baskets, there on that leg, on each leg," adding
that, "with two more spider baskets it will be safe in case
of an emergency"; but, at another, that Wesch said he
would "try" to obtain additional baskets. Solis testified
that Wesch called the employees into his office one by
one, at which time he told them individually that the
extra baskets would be provided. Solis expanded that
Wesch said the baskets would be borrowed from the legs
not being worked on to provide three for the leg in ques-
tion, pending acquisition of new baskets, which would
take "about a week." Ymbert testified that Wesch said he
would "try to put on" three baskets to a leg, and would
"try" to make the crane available.
In any event, Wesch did tell the suspended employees
on June 18 that they could return to their jobs; and,
whatever the inducement, two of them did so that day,
with another eight returning on June 19. Of the remain-
ing two, one quit at that time and another went on vaca-
tion.
Regardless of assurances that Wesch may or may not
have made concerning more spider baskets, nothing had
6 Gonzalez, however, was somewhat tentative on the point, testifying
only that he was "pretty sure" Cantu was there.
682
BAKER MARINE CORPORATION
changed as of June 19; and a number of employees again
refused to work on the legs, including some who had re-
fused on June 14. Gonzalez, explaining the refusal, told
Warren that the employees had been promised the day
before that there would be "two more spider baskets";
and, similarly, Albert Keever explained to Warren that it
was "all over the plant" that Respondent was to install
two extra baskets per leg. Warren replied in each in-
stance that he had "heard nothing about" or "didn't
know anything about" that. Others refusing to work told
Warren variously that the legs were "unsafe," that an
improved "escape route" was needed should there be a
fire or other emergency, and comments of that nature.
As each employee informed Warren of his refusal,
Warren in turn announced that the employee was dis-
charged.
Wesch learned of the situation perhaps a half-hour
after its onset, when Buddy Sheldon, yard superintend-
ent, telephoned him at home. Wesch hastened to the
plant, finding the resisting employees gathered outside
his office, along with Cantu and Roque Marez, the union
local's grievance chairman and acting vice president. Ac-
cording to Wesch, Cantu and Marez informed him that
the employees had changed their minds about returning
to work as things were, and now were demanding "an-
other way down"-"a back door and a front door"-in
case of an emergency. Wesch depicted the reference to
improved means of escape as an entirely "new subject,"
never before raised in connection with the refusals to
work on the legs.
Wesch, declaring that he would fire those refusing to
work and "get this straightened out once and for all," di-
rected the immediate issuance of suspension letters, after
which he launched into individual protest hearings. In
each hearing, he gave the affected employee a chance to
return to work. Each, however, stood firm, consequently
being told that he would be discharged. In all, Wesch
told 11 employees on June 19 that discharge letters
would be forthcoming.'
Cantu, who attended the several hearings June on 19,
testified that all of the employees said "substantially" the
same thing; that is, that they were refusing because
Wesch had not complied with his promise of two extra
baskets, and that they felt they needed improved means
of escape "in case of an accident." Richard Fernandez
testified that, in his protest hearing, he stated that an
"escape route [was needed] for everybody in case of an
emergency," elaborating that the employees "would
have to fight one another to get on" the one spider
basket then provided. Albert Keever first testified that,
in his hearing, he confronted Wesch with Respondent's
failure to "put some more spider baskets there" as prom-
ised, eliciting from Wesch a denial of any such promise;
only to later testify that he had no recall of mentioning
the promise to Wesch.
Wesch, for his part, testified that the subject of escape
routes was not even broached until about the fourth
hearing, and that his standard response when it came up
I The 11 were: Richard Fernandez, Rene Gonzalez, Albert Keever.
Charles Medina, Andres Molina, Leo Obregon, Raul Ortiz. Rene Ortiz,
Ruben Rodriquez, Abelardo Solis, and Carlos Ymbert
was that the existing arrangement had been in effect for
several years and had received OSHA approval.
As the protest hearings were nearing completion, em-
ployees from all over the plant, about 250 in all, began to
leave their jobs out of sympathy for those being dis-
charged. As Wesch described the scene, "people were
coming out of holes, and they were coming [out] all over
the place, just converging on the front gate."
William Geer, Respondent's vice president and general
counsel, immediately telephoned Narvaez, the Union's
subdistrict director, to report the situation. Geer then
turned the phone over to Cantu, who was nearby. Cantu
told Narvaez that Respondent "had made a commitment
to have extra baskets for escape routes," and had failed
to "live up to that commitment." Narvaez responded
that the no-strike clause made it "unlawful" for the em-
ployees to "walk out of the plant," and that it was the
Union's "responsibility" to so inform them. He directed
Cantu to convey this information to the employees, and
to recite the no-strike clause to them.
Cantu then gave the phone to Danny Ramirez, the
acting president of the union local. Narvaez said much
the same thing to Ramirez as he had to Cantu, and urged
that he tell the employees to return to work and give the
Union "an opportunity to do something about the escape
route and about the commitment that the company had
made pertaining to the spider baskets." Narvaez further
told Ramirez to tell the employees that the Union would
be filing a complaint with OSHA alleging the inadequa-
cy of the means of escape from the legs.
Narvaez also spoke by telephone with the union local's
regular president, Porfirio Quiroz, an employee of Re-
spondent at home recovering from an injury. Narvaez
asked that he "go to the plant" and tell the employees
that the walkout was "illegal"; and persuade them to
return to work and give the Union "a fighting chance"
to work out an orderly solution with the Company.
Quiroz quickly went to the plant, where Ramirez told
him that the employees had walked off because Respond-
ent had failed in its promise to place extra baskets on the
legs to be worked on, which baskets assumedly were to
have been moved from the inactive legs. Quiroz con-
fronted Wesch with this information, asking why Re-
spondent had not complied with its commitment. Wesch
denied that Respondent had made any such commitment.
Ramirez, Quiroz, and Wesch, and possibly Sheldon,
shortly spoke to the assembled employees from the bed
of a pickup truck. Ramirez read the no-strike clause to
them in English and Spanish, and asked that they return
to work. Quiroz likewise urged that they go back to
their jobs, stating that the walkout was "unlawful" and
beseeching them not to "tie the Union's hands, but give
it a fighting chance" to achieve a solution through the
bargaining process. Quiroz added that he would be filing
a complaint with OSHA over the spider baskets.
Wesch also told the employees to return to work, stat-
ing that the problem involved only those who had been
suspended for refusing to work on the legs and warning
that those failing to return either would be suspended for
5 days pending discharge or would be deemed to have
683
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
abandoned their jobs. 8 During Wesch's presentation,
Abelardo Solis asked him about "the thing that you
promised yesterday," which Wesch admittedly took to
be an allusion to "the baskets and crane." Wesch replied,
"We promised nothing yesterday."
Whether Sheldon, as well, spoke to the employees is in
dispute. Frank Leza and Rolando Valadez testified that
he did, both averring that Sheldon directed the employ-
ees to return to work, assuring them that the matters
troubling them would be taken care of later. Wesch
denied that Sheldon spoke. Sheldon did not testify.
The several appeals to the employees to abandon the
walkout did not succeed.
On the afternoon of June 19, Quiroz filed a complaint
with OSHA as he had told the employees he would,
after which he telephoned Narvaez to report that fact
and that he and the others had been unsuccessful in per-
suading the employees to return to their jobs. Narvaez
said he wished to meet with the employees at 5 o'clock
that afternoon at the Union's hall in Corpus Christi, and
told Quiroz to pass the word.
About 100 employees gathered at the hall for the 5
p.m. meeting. Before addressing the group, Narvaez met
privately with Quiroz, Cantu, and Victor Gutierrez. Ex-
plaining the refusals to work, Cantu reported that
Wesch, on June 18, "had made a commitment to have
two additional spider baskets," and that the employees
feared for their safety without them because of the June
13 fire. Later, speaking to the group, Narvaez denounced
the walkout as an "unlawful wildcat strike" and directed
the employees to "go back to work and to give the
Union a fighting chance" to work out a solution with
Respondent. Gutierrez and Rene Gonzalez protested that
the Company "should live up to their commitment." Lu-
ciano Garza, a union trustee, interjected that Respondent
must "provide escape routes" before the employees
would return, to which Gutierrez and Gonzalez added
that it also would be necessary that those discharged on
June 19 be reinstated. Narvaez responded that, in telling
the employees to return to their jobs, he was not asking
them to "endanger their life," and that they had the
"right" under the labor agreement and the law not to
work if they felt they would be doing so by returning.9
The meeting closed with Narvaez announcing that he
would be meeting with management at 7 o'clock the next
morning, and asking that the employees be at the plant at
that time.
Union and management officials met at the plant at 7
a.m. on June 20. Narvaez was the Union's chief spokes-
man, while Geer did most of the talking for Respondent.
Quiroz also was present for the Union, and Wesch and
Sheldon attended at least some of the time. Upwards of
100 employees meanwhile assembled at the gate. Geer
stated at the outset that Respondent was "losing a lot of
money" and wanted the sympathy strikers back "as soon
I Wesch testified that he said those failing to return would be consid-
ered to have abandoned their jobs. Frank Leza, Rolando Valadez, and
Tilmon Walker testified that Wesch said they would be suspended for 5
days pending discharge.
I This presumably was a reference to Sec. 502 of the Act and to art.
16(a) of the labor agreement, both previously quoted in relevant part. See
"IV. ISSUES" and fn. I, supra.
as possible." Narvaez replied that he was there to "dis-
cuss some terms," and that there was "no sense of talk-
ing" unless Respondent was willing to proceed on that
basis. Narvaez continued that two "demands" had to be
satisfied before the employees would return to work.
They were that more spider baskets be provided or that
the crane be made available full time as an "escape
route" from the legs, and that those discharged on June
19 "be released back to work."
Geer left the room for a time. Upon returning, he re-
sponded that those discharged for refusing to work on
the legs would not be reinstated at that time, but could
file a grievance "and let the arbitrator decide who was
right and who was wrong"; that those walking out in
sympathy on June 19 "must return to work by the 21st
. or else they would be fired," and, if they did return
by the deadline, there would be "no repercussions, no
violations, no warning notices at all"; and that Respond-
ent "would be willing to continue to discuss" the safety
situation on the legs, to see "what could be done about
the escape routes."
This was acceptable to Narvaez and Quiroz. They
called in Gonzalez, who was among those waiting at the
gate, explaining the plan to him in the hope that he, as
"the leader of the pack," would assist them in persuading
the employees to go back to work.
Narvaez then went "across the street" to address those
at the gate. He described the arrangements just agreed
upon, and told the employees they "must go back to
work" and give the Union "a fighting chance to do
something about the escape route." Narvaez added, how-
ever, much as he had at the union hall the day before,
that if the employees felt their lives were "in danger,"
they had "a right to refuse, according to the agreement
and the law." Gonzalez echoed Narvaez' urgings that
the employees return. The back-to-work deadline was
carried on local television and radio, and the Union con-
veyed the message by telephone, as well, calling "as
many as we knew . . . were out." Many of the employ-
ees returned to work "immediately."
That over, a second meeting of union and management
officials was held, still on June 20, pursuant to Geer's
proposal that they continue to discuss the matter of
escape routes. Narvaez and Quiroz represented the
Union, along with Cantu, Gonzalez, and Victor Gutier-
rez. Present for Respondent were Geer, Wesch, Sheldon,
and Charles Allen, safety director. Narvaez professedly
announced that Respondent "ought to provide the addi-
tional spider baskets" in accordance with its prior "com-
mitment." Allen testified, on the other hand, that no ref-
erence was made to such a commitment.
In any case, Geer, who had been "on the phone con-
stantly throughout the day . . . trying to locate spider
baskets," stated that additional baskets probably would
be "impractical" because of cost. Sheldon interjected
that the legs were to be finished in 4 weeks; and that,
while he was still trying to locate baskets in Houston,
there was "no way" a permanent solution could be im-
plemented by then. One or the other of the union people
next inquired about there being a crane on permanent
standby. Geer answered that it would be "impossible" to
684
BAKER MARINE CORPORATION
have a crane "just parked there," again citing cost.
Wesch agreed that use of the crane in that manner
would be too expensive, and said that Respondent was
thinking of eventually attaching elevators to the legs.
Gutierrez protested that a solution was needed "now,"
and the discussion turned to such things as Geronimo
lines and tugger lines. Allen rejected Geronimo lines as
"unsafe," but Geer said the Company would "check
into" tugger lines. Allen, attempting to deemphasize the
preoccupation with more and better means of escape, de-
clared that there would be minimal fire danger in the
crow's nest if the employees attended properly to their
housekeeping responsibilities. l0 This prompted one of the
union people to ask about other emergencies, such as
heart attack. Allen answered that there never had been a
heart attack in a crow's nest, and that the crane could be
moved into place should there be one.
By June 21, most of the employees had returned in
conformity with Geer's deadline. There were 20 who re-
fused to work on the legs that day, however, and thus
they were suspended, later to be discharged." Nine fail-
ing to report by June 21-some contending they had not
heard about the deadline-likewise were fired. 12
The complaint filed by Quiroz with OSHA on June 19
resulted in that agency's issuance of a citation against
Respondent, dated August 24, stating:
More than one means of access immediately availa-
ble was not provided at all times for employees
working on fixed scaffolds in elevated locations on
the leg structures on J. Storm Rig 07, Marine Drill-
ing, Inc., exposing employees to the hazards associ-
ated with emergency egress from elevated work sta-
tions.
The citation directed that the "violation" be corrected
"immediately," and assessed a "penalty" of $630. Re-
spondent thereafter advised OSHA of its intent to con-
test the citation, prompting OSHA to issue a complaint
against it on November 27, 1979. A hearing on that com-
plaint was pending at the time of the present hearing. 3
'O Art. 16(b) of the labor agreement states: "Housekeeping is part of an
employee's job: therefore, employees will keep their shops and operating
areas in an orderly fashion and employees will be required to leave their
work locations in a neat and orderly condition."
" The 20 were: Vincente Almaquer, Ernest Alvarez, Alfredo Bena-
vides, Julio Chapa, John Charo, Albert Esparza, Rolando Garcia, Gil-
berto Gonzales, John Gonzales, Victor Gutierrez, Pedro Hernandez,
Julio Jolomo, George Luera. Francisco Lugo. Saul Machado, Juan
Mendez. Calixtro Molina, Jaime Rios, Eliseo Rivas, and Manuel Salazar
' The nine were: Justino Diaz, Felix Garcia, Juanita Gutierrez, Frank
Leza, Santo Martinez, Abel Ocanas, John Sanchez, Tilmon Walker, and
Juan Zamora.
" I am administratively advised that Administrative Lagw Judge Stan-
ley M. Schwartz of the Occupational Safety and Health Reviewv Commis-
sion has issued a decision, dated April 6, 1981, ordering that the citation
and penalty be vacated. In his Decision. Administrative Law Judge
Schwartz concluded (sl. op IS8) that "the use of the Spider Basket as a
means of access and egress was in accord with accepted industry practice
and did not constitute a recognized hazard in this particular case"; and
that the record did not "establish that . the Act required another
means of egress in case of emergency . ."
From January 1977 through June 1979, there were
three or four crow's nest fires." Apparently only one
caused injury-when an employee seized a burning hose
in his hands trying to put the fire out-and there is no
history of an injury requiring a doctor's care while
working on a leg. Gonzalez testified that getting burned
"goes with the profession" of welding; another welder,
Willis Johnson, testified that "spot fires" are inherent in
welding, wherever it is done; and Wesch added that
"you always have" small fires as an incident of welding.
Allen, the safety director, testified that housekeeping
in the crow's nest is a "big problem," the employees
tending to let them become a "general mess"; and Cantu
conceded that good housekeeping in the crow's nest
"probably" would eliminate most fires in it. As earlier
noted, the labor agreement specifies that "housekeeping
is part of an employee's job." Abelardo Solis and Carlos
Ymbert in effect agree with Allen about the poor house-
keeping, but assert that the welders are under such pro-
duction pressure from their superiors that they have little
time for housekeeping.
Until the events in question, Cantu, as the Union's
safety representative, had never complained about the
adequacy of escape from the crow's nest, or about the
state of safety otherwise on the legs.
B. Conclusions
It is concluded that the several refusals to work on the
legs and the sympathy walkout contravened no-strike
clause, and that Respondent therefore did not violate
Section 8(a)(1) by taking the actions it did against those
who engaged in these activities.
The General Counsel's argument is rejected that work
on the legs was of an "abnormally dangerous" character
within Section 502 of the Act, and that the refusals to
work on the legs consequently were outside the oper-
ation of the no-strike clause. Before Section 502 can
come into play, there must be "ascertainable, objective
evidence . . . that an abnormally dangerous condition
for work exists."" (Emphasis supplied.) That the em-
ployees have "an honest belief" that such a peril exists
will not suffice, absent more.' 6 And, as is indicated by
the qualifying word, "abnormally," jobs that are inher-
ently dangerous, but have not worsened in that regard,
do not qualify. As the Board has said:
Absent the emergence of new factors or circum-
stances which change the character of the danger,
work which is recognized and accepted by the em-
ployees as inherently dangerous does not become
"abnormally dangerous" merely because employee
patience with prevailing conditions wears thin or
their forbearance ceases. t7
B Recause of the imprecision of much of the testimony about fires, it
sometimes is impossible to discern from the record if two or more wit-
nesses are speaking about the same or different fires.
1' Garewav Coal Co. v United dMine Workert of America. et a, 414 U.S
368. 385-87 (1974) See also Stop d Shop. Inc.. 161 NLRB 75. 76. fn 3
(1966): Redwing Carriers. Inc. and Rockana Carrinrs. Inc.. 130 NLRB
1208, 1209 (1961).
" Gatewray Coal Co. v. United Mine Workers. supra at 385-386.
' Anaconda Aluminum Company, 197 NLRB 336, 344 (1972).
685
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Without questioning the sincerity of the employees'
safety concerns in the present case, and though the con-
ditions troubling them, doubtless entailed some risk (de-
spite the virtual nonoccurrence of injuries attributable to
those conditions), the fact remains that those conditions
had been in existence without change for a considerable
period of time, and had been accepted by the employees
without complaint. Nothing changed but the employees'
perception of danger, which, as the above quotation sug-
gests, is not enough.
Also rejected is the General Counsel's argument that
Respondent entered into a binding agreement on June 18
to have extra baskets installed by June 19, and that it
therefore violated Section 8(a)(5) and (I) by failing to
have the added baskets in place by June 19. Although
Wesch admittedly queried the employees about their
willingness to work on the legs if there were three bas-
kets and crew size were held to six, S and while it is in-
ferable that at least some of the employees came to work
on June 19 believing that such changes by then would be
in effect, the evidence simply fails to establish a contract-
ed-for commitment of this sort.
Cantu conceded, when pressed, that Wesch never said
the changes would be accomplished by June 19; and
Gonzalez and Ymbert both admitted, likewise upon
being pressed, that Wesch said only that he would "try"
to get the extra baskets. That leaves Solis, who testified
that Wesch told him and the others individually, having
called them into his office one by one, that more baskets
would be obtained by borrowing from legs not being
worked on. This testimony is worthy of scant weight be-
18 Wesch to the contrary, the weight of evidence and plausibility com-
pels the conclusion that Wesch spoke to the employees in this vein on
June 18 rather than June 14.
cause of its largely hearsay nature and the lack of cor-
roboration of the one-by-one procedure.
Respondent not having violated Section 8(a)(5) and (1)
by failing to install extra spider baskets by June 19, the
General Counsel's theory perforce fails that the no-strike
clause thereby was rendered inoperative as concerns
June 19 sympathy walkout and the other refusals to
work on and after June 19.
But even had Respondent been in derogation of a deal
it had made with the employees and their union regard-
ing the spider baskets, this would not have amounted to
a repudiation or material impairment o the underlying
bargaining agreement, excusing noncompliance with the
no-strike clause.9 It might be argued that the refusals
and walkout on and after June 19 nevertheless constitut-
ed unfair labor practice strikes, beyond the scope of the
no-strike clause, but the General Counsel expressly dis-
avowed that theory on the record.
CONCLUSIONS OF LAW
Respondent did not in any respect violate the Act as
alleged.
ORDER 20
The complaint is dismissed in its entirety.
"' See, generally, United Electrical, Radio and Machine Workers of
America, Local 1113 [Marathon Electric Mfg. Corp.] v. N.L.R.B., 223 F.2d
338, 341 (D.C. Cir 1955); Kellstone. Inc., 206 NLRB 156 (1973).
20 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
686